Introduction: Supreme Court Case on Ministerial Exception to Employment Discrimination Law

The Supreme Court has now held, in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., that a church’s decision to fire a teacher who is a “minister,” rather than just a lay teacher, is within a “ministerial exception” and therefore may not be challenged as a violation of an employment discrimination law.

The Court ruled that allowing such a claim would violate the First Amendment’s guarantee that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It would do so by interfering with an church’s internal decision affecting its faith and mission.

I suspect this decision may be less surprising to employment law practitioners familiar with prior law on the subject than to the general public. As the Court stated, the Courts of Appeals, “have had extensive experience with this issue” and “have uniformly recognized the existence of a ‘ministerial exception,’ grounded in the First Amendment,” precluding application of employment discrimination laws to the employment relationship between a religious institution and its ministers.

The exact parameters of the exception are important, but the decision is not particularly illuminating on this aspect of the issue.

Facts of Supreme Court case on applying employment discrimination law ministerial exception to church school teacher

The EEOC sued on behalf of a former church school teacher, alleging her firing was unlawful retaliation for her threat to file an Americans with Disabilities Act (ADA) lawsuit.

The school classifies its teachers as either “called” or “lay.” “Called” teachers, including the teacher in question, are regarded as having been called to their vocation by God. They must complete certain academic requirements, including a course of theological study. Such a teacher receives the formal title “Minister of Religion, Commissioned.”

“Lay” teachers are not required to be trained by the church or even to be church members.

Lay and called teachers generally perform the same duties, but lay teachers are hired only when called teachers are unavailable. The teacher in question taught math, language arts, social studies, science, gym, art, and music. She also taught a religion class four days a week, led the students in daily prayer and devotional exercises, and attended a weekly school-wide chapel service, which she led about twice a year.

The District Court held the suit was barred by the First Amendment. The Sixth Circuit vacated and remanded. It agreed there was a First Amendment ministerial exception, but found it inapplicable because the teacher was not a “minister.”

Supreme Court’s exploration of historical background underlying ministerial exception

This is one of those cases in which the Court reached way, way back in history in support of its constitutional conclusion that both the establishment and free exercise clauses of the First Amendment bar the government from interfering with a religious group’s firing of a minister.

Cynics might say this reflects a weakness of the intellectual and legal basis for the decision. Why go back so far rather than apply more recent freedom of religion jurisprudence? But those approving the decision surely appreciate the historical analysis as indicating the decision is firmly in line with founding and fundamental constitutional principles.

The Supreme Court’s “history lesson” included these facts:

• In 1215, the first clause of Magna Carta provided that “the English church shall be free, and shall have its rights undiminished and its liberties unimpaired,” but “that freedom in many cases may have been more theoretical than real.”
• “Seeking to escape the control of the national church, the Puritans fled to New England, where they hoped to elect their own ministers and establish their own modes of worship.” “Colonists in the South … brought the Church of England with them. But even they sometimes chafed at the control exercised by the Crown and its representatives over religious offices.” “Controversies over the selection of ministers … arose in … Colonies with Anglican establishments, including North Carolina.”
• “It was against this background that the First Amendment was adopted.” “By forbidding the ‘establishment of religion’ and guaranteeing the ‘free exercise thereof,’ the Religion Clauses ensured that the new Federal Government — unlike the English Crown — would have no role in filling ecclesiastical offices.”
• Two events involving James Madison, the religion clauses’ “leading architect,” involved the selection of church “functionaries” or “ministers.” The Court quoted Madison as stating that the “’scrupulous policy of the Constitution in guarding against a political interference with religious affairs,’ prevented the Government from rendering an opinion on the ‘selection of ecclesiastical individuals.’”
• In Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116 (1952), the Supreme Court “recognized that the ‘[f]reedom to select the clergy, where no improper methods of choice are proven,’ is ‘part of the free exercise of religion’ protected by the First Amendment against government interference.” The Supreme Court “reaffirmed these First Amendment principles in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U. S. 696 (1976), holding that the First Amendment “permit[s] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters.”

Existence of ministerial exception comes across as “no-brainer” for Supreme Court

Having laid out the above historical background and fundamental principles of the religion clauses as they relate to selection of clergy and internal church governance, the Court adopted, with little discussion, the unanimous holdings of the courts of appeal that the First Amendment requires a ministerial exception to the employment discrimination laws, stating:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

The ministerial exception could arguably be limited to a religious organization applying religious standards to employment, such as the obvious one that the individual profess their faith and agreement with doctrinal fundamentals. That might preclude enforcement of laws against religious discrimination, but allow enforcement of laws against other forms of discrimination. But here’s the rub. Some non-religious discrimination is religiously motivated, particularly gender discrimination. The Court noted:

The EEOC and [the fired teacher] acknowledge that employment discrimination laws would be unconstitutional as applied to religious groups in certain circumstances. They grant, for example, that it would violate the First Amendment for courts to apply such laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary.

Imagine the reaction were the Court to rule the Catholic church must ordain female priests! I imagine there are many both within and without the Catholic church who would welcome a decision to ordain women, but I think most Americans would agree that is a religious matter that should be decided by the church through its established hierarchy and procedures, rather than by a court.

Applying the ministerial exception to a “called” teacher

The next question, and the more difficult one, was whether the ministerial exception should protect the church in connection with the firing of this “called” teacher. Essentially, the Supreme Court found that it should because she was functionally equivalent to a minister.

The Court said, in agreement with every Court of Appeals considering the question, that “the ministerial exception is not limited to the head of a religious congregation.” It then said it “was reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister. It thus signaled a narrow ruling that could later be distinguished factually — stating that it was enough that the particular “called” teacher in question was within the exception, “given all the circumstances of her employment” (emphasis added).

Relevant circumstances of the teacher’s employment included:

• The church held her out “as a minister, with a role distinct from that of most of its members,” awarding her a “diploma of vocation” andaccording her the title “Minister of Religion, Commissioned.”
• As such, she was required to perform her work “according to the Word of God and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures,” and the congregation prayed God’s blessings on her “ministrations.”
• “The congregation undertook to periodically review [her] ‘skills of ministry’ and ‘ministerial responsibilities,’ and to provide for her ‘continuing education as a professional person in the ministry of the Gospel.”
• She had received “a significant degree of religious training,” including eight college-level religion courses, “obtain[ed] the endorsement of her local Synod district,” and passed “an oral examination by a faculty committee at a Lutheran college.”
• “[S]he claimed a special housing allowance on her taxes that was available only to employees earning their compensation ‘in the exercise of the ministry.’”
• She was “expressly charged … with ‘lead[ing] others toward Christian maturity’ and ‘teach[ing] faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran Church.’ In fulfilling these responsibilities, [she] taught … religion four days a week, and led … prayer three times a day. Once a week, she took her students to a school-wide chapel service, and — about twice a year — she took her turn leading it …. [She] also led … a brief devotional exercise each morning. As a source of religious instruction, [she] performed an important role in transmitting the Lutheran faith to the next generation.”

Basis for disagreement with Court of Appeals on status of “called” teacher

The Supreme Court next outlined three errors it said the Sixth Circuit committed in finding the “called” teacher not covered by the ministerial exception:

1. The Sixth Circuit “failed to see any relevance in the fact [she] was a commissioned minister.” The Court said such a title does not by itself establish the applicability of the exception, but “the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position.”
2. The Sixth Circuit “gave too much weight to the fact that lay teachers … performed the same religious duties.”
3. “The Sixth Circuit placed too much emphasis on [her] performance of secular duties.” While her religious duties took only 45 minutes a day, “the issue … is not one that can be resolved by a stopwatch.” The amount of time is relevant, but “cannot be considered in isolation, without regard to the nature of the religious functions performed and the other considerations.”

Concurring opinions

Justice Thomas wrote separately to express his view that more deference should be accorded religious organizations in defining who is a “minister” or the equivalent:

A religious organization’s right to choose its ministers would be hollow … if … courts could second-guess the organization’s sincere determination that a given employee is a “minister” …. The question whether an employee is a minister is itself religious in nature, and the answer will vary widely. Judicial attempts to fashion a civil definition of “minister” … risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the “mainstream” or unpalatable to some. Moreover, uncertainty about whether its ministerial designation will be rejected, and a corresponding fear of liability, may cause a religious group to conform its beliefs and practices regarding “ministers” to the prevailing secular understanding.

Justices Alito and Kagan also concurred, at much greater length, making several points:

• Because of significant variations in terminology and practices between religions, “it would be a mistake if the term ‘minister’ or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one. Instead, courts should focus on the function performed ….” Therefore, the ministerial exception should apply to “any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”
• The church discharged the “called” teacher “because she threatened to file suit against the church” which “contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system ….” The church claims her “disregard for this doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church’s faith.” She “argues that this was a mere pretext for her firing, which was really done for nonreligious reasons.” “For civil courts to engage in [this] pretext inquiry … would dangerously undermine the religious autonomy that lower court case law has now protected for nearly four decades. In order to probe the real reason for [the] firing, a civil court — and perhaps a jury — would be required to make a judgment about church doctrine.

Issues Not Decided and Consequences for Church Employment Decisionmaking

The Supreme Court often states what it has left for another day, as well as what it has decided. In this case, two paragraphs expressly make such limiting statements:

1. “We express no view on whether someone with [the "called" teacher's] duties would be covered by the ministerial exception in the absence of the other considerations. But … it cannot be dispositive that others not formally recognized as ministers by the church perform the same functions — particularly when, as here, they did so only because commissioned ministers were unavailable.”
2. “The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.”

Count on it: those unresolved issues will be litigated plenty in coming years, and eventually a case will probably make its way to the Supreme Court.

Conclusion

The Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. upheld existing law by recognizing a ministerial exception to the employment discrimination laws. The Court strongly grounded this exception in longstanding First Amendment religious freedom principles. It is clear that the exception applies to claims of types of discrimination other than those based on religion, as Hosanna-Tabor involved a claim of retaliation for allegations of disability discrimination. It is also clear that the exception’s application to persons other than ordained clergy will be decided on a case-by-case, considering multiple factors, but that it will not be limited in application to such clergy.

Related Reading:

Employment Discrimination: Examples & Explanations

Cases and Materials on The Law of Employment Discrimination, 8th (University Casebooks)

The Law of Sex Discrimination

Mastering Employment Discrimination Law (Carolina Academic Press Mastering Series)

Employment Discrimination Law: Cases and Materials on Equality in the Workplace, 8th (American Casebooks)